Lawsuit alleging private border wall violates U.S.-Mexico treaty appears headed to trial

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We Build The Wall assets frozen and lawyer said he hasn't been paid

McALLEN, Texas (Border Report) — A lawsuit filed by the federal government against the builder of a private border wall that hugs the Rio Grande in South Texas could go to trial a year from now.

During a status conference hearing held Thursday via Zoom due to the COVID-19 pandemic, U.S. District Judge Randy Crane appeared surprised by requests from both sides in the lawsuit to set a trial date for September 2021. The federal government last year sued Fisher Industries and other involved parties on behalf of the International Boundary and Water Commission alleging the 3-mile-long private border wall on private property south of the town of Mission violates an international treaty the United States has with Mexico.

Crane said he would hold one final status conference on the case prior to Christmas to determine whether the case will be scheduled for trial. If both sides cannot work out issues then the trial would likely be set for September 2021 in the U.S. District Court for the Southern District of Texas in McAllen, Texas.

“You had me believing you all were very close in agreeing on the case,” Crane said. “And hopeful you all would work this all out.”

The Mexican shoreline is seen just yards across the Rio Grande from a private border wall build along the riverbanks earlier this year south of Mission, Texas. (Border Report File Photo/Sandra Sanchez)

Lawyers for the Justice Department, however, said they have yet to receive updated hydrology models, which Fisher CEO Tommy Fisher promised. Lawyers have said they need the models to study and submit to both the U.S. and Mexican sections of the IBWC to determine whether the private border wall would pose no threat to the international river or violate the international treaty.

The U.S. government also is awaiting a plan for repairs and maintenance of the structure, especially after significant land erosion was noted beneath the fence following Hurricane Hanna, which struck the region on July 26.

Erosion damage caused by Hurricane Hanna is seen along the Fisher border wall, a privately funded border fence, along the Rio Grande River near Mission, Texas, Thursday, July 30, 2020. The wall was built by a construction company that’s won $1.3 billion in U.S. government contracts and promoted by supporters of President Donald Trump. (AP Photo/Eric Gay)

“I think Mr. Fisher has in his mind an idea that will help the erosion problem. But for the IBWC we need to be sure that the fixes that Mr. Fisher puts in place actually will work because we’re dealing with an international treaty and an international boundary,” Assistant U.S. District Attorney E. Paxton Warner told the court.

“We’re hopeful this will still be worked out but once we see what Mr Fisher’s repairs and fixes actually are then we need to get out there,” Paxton said.

He added that the federal government plans to hire a geo-technical expert and a structural engineer to review plans, once they are received. “And if the issues with deflection continue in the model then we’ll have to address it in a much more meaningful way.”

If the issues with deflection continue in the model then we’ll have to address it in a much more meaningful way.”

Assistant U.S. District Attorney E. Paxton Warner

“We’ve been out there working on the property and the erosion issue. We don’t agree it’s a serious issue. We believe it’s remedied. We are in the process of addressing,” Fisher lawyer Mark Courtois told Crane.

Fisher told Border Report last month that his company was adding gravel and sand to smooth the land base and to create a 5-to-1 golf-course like slope, which the company had created prior to recent storms.

Tommy Fisher, CEO of Fisher Industries and Fisher Sand & Gravel Company, points to newly laid concrete on Jan. 15, 2020, at the site of a 3-mile stretch of private border wall his company built south of Mission, Texas. (Border Report File Photo/Sandra Sanchez)

Courtois admitted that hydrology models that had been promised by his client were taking longer to send to the federal government, and he said he expected it to be complete within a couple of weeks. That was similar to what was said during the July 8 conference hearing.

“Putting it (the trial date) to September will give us the opportunity to try and get this hammered out in the next couple of months and if we don’t that will give us the time to do discovery (for trial),” Courtois said.

Adding to difficulties is the ongoing coronavirus pandemic, which Paxton said has all but halted communication between the Mexican and U.S. side of the IBWC, which would also need to sign off on any maintenance plans and hydrology models.

Also at issue is the ownership of the property, which is owned by Lance Neuhaus, of Neuhaus & Sons, a sugarcane farmer who is also a defendant in the lawsuit. Neuhaus’ lawyer Lance Kirby told Crane the riverfront strip of land was leased to Fisher last year to build the border wall with the intention to buy, but the sale has not yet gone through due to issues of trying to survey the property during the pandemic.

Hidalgo County tax appraisers have valued the 50-acre strip of land containing the private border wall at a whopping $20.2 million for 2020, with a tax bill of nearly half a million dollars. If Neuhaus is not the owner of that segment, then Fisher would be required to pay those taxes.

Crane — who in January lifted a temporary restraining order against the project because he said insufficient evidence at the time was submitted to the court to show it would cause harm or violate the treaty — told government lawyers on Thursday that since the structure is already up that if there are any notable concerns, such as the structure falling down or significant land erosion into the Rio Grande, prior to the end of the year that they should reach out to the court.

Crane also asked whether the federal government has intention to buy the private border wall, or accept it as a donation “to at least use the steel” for future border wall construction, since the federal government at present is constructing a 30-foot-tall bollard fence parallel to this fence about a mile inland from the Rio Grande.

“Which makes it appear that the value of this one is somewhat diminished,” Crane said. “Are the owners of the wall donating it to the government or deeding it to the government? Its purpose has already been fulfilled. Have you talked about that?”

“No, there has been mention,” Paxton replied. “But the United States, DHS, did not put its wall on the riverbank. The government put it up where it showed there was a proper place to put the wall. At this point we’re simply stuck trying to make sure this wall doesn’t violate the treaty and will stay up.”

Fisher has said the private border wall cost $44 million to build, $22 million of which he financed. The nonprofit organization We Build The Wall crowdsourced funds for the project and raised $25 million, however, indictments and arrests made last month of leaders of the organization allege that they did not use the money as intended for border wall construction and instead used it for personal gain.

Fisher has told Border Report that he was paid less than $2 million from We Build The Wall for construction of the project.

Fisher, Neuhaus and We Build The Wall, and its founder Brian Kolfage, are named in another lawsuit against the private border wall brought by the North American Butterfly Association on behalf of the National Butterfly Center, which is located near the private border wall and alleges it is a structural nuisance to the area. The center’s director also has filed a defamation lawsuit against We Build the Wall and Kolfage.

Crane heard this case Thursday morning immediately following the first case brought by IBWC during which a lawyer for We Build The Wall stated all of the organization’s assets have been frozen and he requested an extension because he was not being paid by the company at present.

“I think in 30 days we’ll have more of an idea if funds will be released,” We Build The Wall lawyer David Oliveida said.

Crane granted the extension and said he would set a hearing for late November or December, prior to Christmas, for both cases.

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